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Pet Custody: Who Gets the Dog in Divorce?

Your marriage is over. You know it. You’re dealing with it. But the thought of losing your dog or cat along with your spouse is tearing your heart out. You’re willing to fight for your furry friend. The problem is: so is your spouse! You’ll share if you have to. But, is pet custody even a thing?

Pet Custody and the Law

As cold as it seems to anyone who’s ever loved a four legged fur baby, most laws consider pets to be property. Period.

That means that no matter how much you love your pets, once you divorce, either you become your pet’s sole owner, or your spouse does. There really is no in-between.

There is no “pet custody.” There is no sharing time with your pet post-divorce. What’s even harder to accept is that, in most states, no one really cares what’s in your pet’s “best interest.”

Your pet has no greater legal status than your lawn mower.

While many of us think of our pets more as a part of the family than as property, the law in most states simply doesn’t view animals that way. In truth, that’s actually not that surprising.

At one time or another, the law has considered wives, children, and slaves to be property, too.

Luckily, the law is finally starting to change.

The New Pet Custody Laws

Even though the law has traditionally held that pets are property, some judges are starting to disagree. According to the Animal Legal Defense Fund:

Although animals are considered property in the eyes of the law at this time, some courts are beginning to recognize that one’s relationship with this particular form of property known as the family cat, dog, bird etc., is much different from one’s relationship with other forms of property such as your couch, your watch or your coffee pot.

Maybe because of this kind of sentiment, the legislatures in some states have finally started to change divorce law when it comes to pets.

Last year, Alaska became the first state in the country to require courts to take a pet’s well being into consideration when deciding who gets the family pet in divorce. The Alaska statute explicitly empowered judges with the authority to award joint custody of pets to a divorcing couple.

Illinois recently followed suit.

Effective January 1, 2018, Illinois judges may now award either joint or sole possession of family pets in divorce. The new Illinois law also requires courts to take into consideration the pet’s well-being when deciding what happens to that pet after divorce.

While the Illinois statute doesn’t specifically use the term “pet custody,” it does talk about possession of, and responsibility for, pets in divorce. Essentially, that ends up meaning close to the same thing.

What To Do If You Want Your Dog in Divorce?

If you live in a state like Alaska or Illinois, getting custody of your cat or dog in divorce should now be much easier. Since courts in these states now are able to grant joint custody or joint possession of your pet to both you and your spouse, you’re no longer forced to either win or lose your pet forever.

You can share.

But even if you live in a state that still classifies pets as “property,” if you and your spouse agree to share time and responsibility for your pet, the judge is likely to allow you to make whatever agreement you want. If you and your spouse don’t agree, however, that’s when things get trickier.

8 Tips to Prove YOU Should Get Your Pet in Divorce

Regardless of whether the law in your state authorizes joint custody of a pet or not, fighting to become the sole owner of your pet will require you to persuade the judge that s/he should award the pet to you. To do that, you’re going to have to prove either that the pet belongs to you, or that your pet will be better off with you.

Here are 8 kinds of evidence you can use to make your case:

Ownership or adoption papers that show that you are your pet’s registered owner;

Vet receipts or other documentation showing that you were the one who took your pet to the vet all, or most of, the time;

Pet store receipts that show you were the one who bought your pet’s food, toys, etc.

Any evidence you can find that you were the one who took your pet to training classes, puppy play time, etc.

Pictures of you and your pet together (especially pictures taken at various times BEFORE anyone filed for divorce);

Evidence that you will be able to provide a home for your pet after your divorce (Obviously, if you own your own home, this isn’t a problem. But if you rent an apartment, you may need to prove that your lease allows pets.);

If you have a big dog, proving that you have a big place and a big yard could be helpful. (Housing a 200 pound English mastiff in a 500 foot studio apartment is clearly going to be problematic.); and

Evidence that your work schedule provides you with enough time to care for your pet. (This isn’t as big a deal if you own a cat. If you own a dog, it can be huge!).

What’s Really in Your Pet’s Best Interest?

While losing your pet in divorce can be heartbreaking, before you fight to the death to get the judge to award Fido to you, stop and think about what’s best for Fido!

If you can’t take care of your dog or cat after your divorce, don’t fight to keep him! If you don’t have the time, money, and space it takes to properly care for your pets, and your spouse does, then let your spouse keep the pets.

Yes, doing that will be hard. It will hurt. And it may seem horribly unfair. But, if you truly love your pet, put your ego aside and think about what will really be best for him/her.

Sometimes, doing what’s best for your pet means doing something very different than what you want.

If your pet is old, sick, or anxious, then schlepping him/her from one house to the other every week is probably not a good idea. Yes, it may make you feel better. But, if you’re making your pet miserable in the process, who are you really doing that for? Your pet? I don’t think so.

Another thing to consider is your kids. If the family pet really belongs to your child, consider letting the pet travel back and forth between houses with your child. That way your pet and your kid can provide comfort and stability to each other.

The Bottom Line When It Comes to Pets and Divorce

Divorce is hard on everyone, including the family pet. If your spouse wants to start The War of the Roses over your cat or dog, your divorce is going to be that much harder. Unfortunately, the law in many states doesn’t support pet custody.

While that law is changing, unless you live in Illinois or Alaska, you may find yourself fighting an uphill battle. In the end, only you can decide if that kind of fight will be best for you, your kids, and your pet.

About Karen Covy

Karen Covy is a divorce advisor, attorney, author and a divorce coach. She is committed to helping those who are facing divorce get through the process with the least amount of conflict, cost and collateral damage possible.

Reader Interactions

Comments

New pet custody law is interesting. Gov. Brown signed a bill on Thursday this week to help litigants in a divorce keep the family pet (or at least make an argument for the pet beyond a community property or separate property right). The law does not mention how it will apply to prenups where one party is entitled to the family pet per the prenup but per the the new law. If you have any information on this it would be helpful. Thanks. AMD.

Since the California pet custody law which allows judges to decide the ownership of pets in divorce cases was only signed into law a few days ago, I really can’t comment on how it will be interpreted or applied yet. But it is interesting that California passed this kind of law. Perhaps more states will follow suit soon!

My ex won our dogs during the divorce because she used her credit card to pay for them, while we were married. Even though we had the same bank account. For the last 2 years I’ve been taking care of the dogs 95% of the time because she hasn’t been able to care for them. I pay to take them to the vet, pay for medication that’s needed everyday for one of the dogs, pay for grooming, food and more. She hasn’t given me one cent. Now, she’s trying to take them full-time. How can I fight to have them full-time?

Oh my! What you have to do, as well as what your chances of succeeding may be, depends a lot on where you live. You really need to talk to a good divorce lawyer in your area to find out what your chances are for keeping the dogs based on the laws in your state. Also, I’m a little confused as to whether your divorce is already over or still in process. That, too, can make a difference in how things end up.

I have a question. My divorce case has basically been settled. We have agreed on everything accept the family pet. The divorce keeps getting delayed and now mediation has been ordered. Nothing is going to get settled in mediation so it is a waste of time and money. Can we not just have a quick one issue hearing with a judge over the pet and be done with it? Or can the divorce be granted and we fight over the pet on another day? I want out of this marriage but I want my pet too.

I don’t mean to sound like a lawyer, but the answer is: It depends. Is it theoretically possible to have a one issue hearing with a judge over your pet? Yes. Will it happen? I don’t know. That depends on whether the judge will hold a hearing before mediation. It also depends on whether you and your spouse will actually agree to everything else if the pet issue is still up for grabs. Many times one issue can derail an entire settlement. Then you’re going to trial about EVERYTHING, not just one issue.

Can your divorce be granted without settling the pet issue, and can you fight over that another day? Again, theoretically, yes. But most judges won’t do that. They don’t like to let one issue hang. So it’s usually an all or nothing proposition.

To get answers to what the judge in your case is likely to do, you need to ask your lawyer. (Sorry! I don’t know your judge, or the laws in your state, so I can’t help you there.)

My husband and I are separated. I’m in Florida and he moved to Texas where he lived with a roommate. He was recently deported and is not allowed back in the US. The dogs were left at his house who he shared with the roommate. The roommate is refusing to return the dogs. I was asked to pickup the boys but all the paperwork on them is at the house in the roommates possession. What can I do to get my dogs back?

I’m not sure what to do in this case.
I bought my dog 4 years ago, had her for about a year when I decided to switch jobs and move 40 min away. I took my dog with me but she did not adjust well so I brought her back to my parents, who then left her with my neighbor/ family friend. That became the norm for 4 yrs where he had her most of the time during the week and I took her on weekends when I could. Now that I have a better schedule and more time to spend with her, I asked for more time than just weekends and he’s saying no you don’t own her anymore.

I’m not really sure what to tell you. It doesn’t seem like this is a divorce issue (unless you are married to your parents’ neighbor). If you really want your dog back I suppose you could go to a lawyer in your area and see what your options are. Otherwise, you’ve got to try to work something out with your parents’ neighbor.

This didn’t quite cover what I needed. My card paid for the dog however my boyfriend at the time jumped to put his name on the papers. I have evidence that I paid for it and i have a.home that’s big enough for him while, when my fiance moves out, he has nowhere. His mother won’t even take him. Will i have the upper hand?

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